Alabama Bill Would Criminalize Librarians Who Allow 'Material Harmful to Minors'

The bill also attempts to ban drag performances at public libraries. 

Under a new bill working through the Alabama Legislature, public librarians could soon face prosecution for providing minors with "harmful" materials. Critics say that the bill, which passed the state's House of Representatives with a large majority, would force librarians to unnecessarily censor challenged books, or face misdemeanor charges. 

"This basically gives one person the ability to have a librarian arrested, as long as they can convince a warrant clerk that they've given notice and material is obscene," Rep. Chris England (D–Tuscaloosa) said during a discussion of the bill on Thursday. "Does that make you comfortable?"

House Bill 385 updates an existing obscenity law "to provide that the use of any premises to distribute material that is obscene or harmful to minors is a public nuisance," rendering violators open to misdemeanor charges. 

The current obscenity law is primarily focused on preventing minors' access to adult film stores and adult entertainment businesses. H.B. 385 removes a provision that exempts public libraries and public K-12 school libraries from the law's consequences—though college and university libraries are still exempt.

The bill also contains a provision that seemingly attempts to ban "drag queen story hour" and similar events with drag performers in public libraries by barring "any sexual or gender oriented conduct that knowingly exposes minors to persons who are dressed in sexually revealing, exaggerated, or provocative clothing or costumes, or are stripping, or engaged in lewd or lascivious dancing, presentations, or activities in K-12 public schools or public libraries where minors are expected and known to be present without parental presence or consent."

Constitutionally unprotected obscenity has a widely accepted three-part legal definition—work that appeals to the "prurient interest," "depicts or describes, in a patently offensive way, sexual conduct," and "taken as a whole, lacks serious literary, artistic, political, or scientific value." However, "material harmful to minors" is a much more vague legal concept. In the bill, it is defined similarly to the basic, three-pronged obscenity definition but with the condition that it is inappropriate for minors specifically. 

Courts have agreed that there can be some material that is obscene to minors but not adults, thus allowing states to enact laws banning minors from having access to some explicit material that otherwise would not meet the standard obscenity definition. 

It is unclear whether, upon a legal challenge, H.B. 385 would be treated as a permissible anti-obscenity law or if the bill's language would be considered so vague as to seriously challenge protected speech. In July 2023, a judge issued a preliminary injunction blocking a similar law in Arkansas from going into effect. 

Those opposed to the bill argue that it could cause librarians to face unfair enforcement from community members seeking to ban controversial books.

"We are for the entire community. We have to be. We've got some books in here that are far right. We've got some books on the far left. But the library is for the entire community. We've got to stay in the middle as best we can, and they want to push us way off to the far right." Craig Scott, president of the Alabama Library Association, told the Associated Press. "Why are they coming into libraries or thinking that they can come in and run the place better than us as professionals?"